Thursday, April 16, 2015
The U.S. Department of Labor has released a new proposed rule intended to protect consumers from conflicts of interest among an array of folks who want to give advice about how and where to invest 401(c) and IRA retirement funds. The new rule would impose a "fiduciary duty" standard on those advisors, rather than the current, lower "suitability" standard for investment advice.
A DOL press release explains the goal:
"This boils down to a very simple concept: if someone is paid to give you retirement investment advice, that person should be working in your best interest," said Secretary of Labor Thomas E. Perez. "As commonsense as this may be, laws to protect consumers and ensure that financial advisers are giving the best advice in a complex market have not kept pace. Our proposed rule would change that. Under the proposed rule, retirement advisers can be paid in various ways, as long as they are willing to put their customers' best interest first."
Today's announcement includes a proposed rule that would update and close loopholes in a nearly 40-year-old regulation. The proposal would expand the number of persons who are subject to fiduciary best interest standards when they provide retirement investment advice. It also includes a package of proposed exemptions allowing advisers to continue to receive payments that could create conflicts of interest if the conditions of the exemption are met. In addition, the announcement includes a comprehensive economic analysis of the proposals' expected gains to investors and costs.
The New York Times covers the new rules in "U.S. Plans Stiffer Rules Protecting Retiree Cash," and notes the history of opposition to this kind of reform from -- surprise, surprise -- the "financial services industry." There is a 75-day window for public comments on the latest proposal.
Perhaps my biggest surprise was the remarkably "consumer friendly" presentation of the proposed change by the Department of Labor on its webpage, beginning with this simple video describing conflicts of interest.
From the New York Times on April 14, an article from the business section, As Nursing Homes Chase Lucrative Patients, Quality of Care is Said to Lag.
Promises of “decadent” hot baths on demand, putting greens and gurgling waterfalls to calm the mind: These luxurious touches rarely conjure images of a stay in a nursing home.
But in a cutthroat race for Medicare dollars, nursing homes are turning to amenities like those to lure patients who are leaving a hospital and need short-term rehabilitation after an injury or illness, rather than long-term care at the end of life.
Even as nursing homes are busily investing in luxury living quarters, however, the quality of care is strikingly uneven. And it is clear that many of the homes are not up to the challenge of providing the intensive medical care that rehabilitation requires. Many are often short on nurses and aides and do not have doctors on staff.
Some colorful quotes here ("patients are leaving the hospital half-cooked"), but a lot of this well-written article nonetheless seems like old news to me (okay, perhaps that's because of my chosen research focus), with reporting on trends influenced by operating margins on the "nonprofit" side of care, and "return on investment" for shareholders on the for-profit side. Perhaps "intensity" of the pressures is the theme here?
Tip of the hat to George Washington University Law student Sarah Elizabeth Gelfand ('16) and GW Professor Naomi Cahn for making sure we saw this article!
Wednesday, April 15, 2015
On April 15, the trial proceedings in State of Iowa v. Henry Rayhons continued, after a day without courtroom proceedings.
The day started with testimony from an "Iowa DCI Agent" about a secret recording, two hours in length, that the agent made of his interview with Henry Rayhons on June 12, 2014, during which they discussed the couple's relationship and events surrounding the night of May 23, 2014 (the date of the alleged sexual abuse). Reading between the lines of early news reports, it appears the prosecution was planning or wanted to play excerpts from the recording as part of its case-in-chief, and the defense lawyer took the position that if anything comes in, the whole recording comes into evidence.
Here's a KIMT.com link to a story about this recording, including Rayhon's emotional reaction to the playing of the recording in the courtroom. Here's a link to KIMT's live twitter posts on the trial.
The above was available from the morning session of court. More updates on later proceedings will be posted here, if additional information on today's session becomes available.
Here is an "update" from news media in Iowa, focusing on alleged details from the tape-recorded interview by the DCI (Department of Criminal Investigations) Agent with Henry Rayhons a few days after the night in question. The prosecution appears to be offering segments as evidence that Rayhons "confessed" during the interview, while other segments appear to show his confusion and lack of awareness (or perhaps understanding) about the doctor's diagnosis.
I'm not clear whether this "interview" triggered Miranda warnings, or whether they were waived, but it appears the agent did not tell Rayhons it was being recorded.
More and more lessons seem to be emerging, regardless of the eventual verdict in this case. The more I hear of details from the trial, the more it amazes me how a March 2014 admission to a care facility, that apparently followed the daughters' reasonable concerns about the behavior of the wife, can fail to involve deeper family counseling, discussion and support for both the wife and the husband. This was a dramatic change in their relationship. My head is spinning with all of the missed opportunities for counseling, and, if necessary, mediation.
I'm seeing far more time spent on a criminal investigation about the night of May 23, 2014, than on counseling a 78-year-old man about what it might mean to have a wife in a nursing home in Iowa, where there are Iowa-specific laws about sexual conduct between married partners no longer cohabiting. I'm thinking the wife's daughters could have been assisted by sensitive counseling as well, both before and after March 23. But, I also suspect that there is no Medicare or insurance "billing code" for counseling the family members in this scenario.
And finally, here is late-day coverage by the Des Moines Register from the trial, also focusing on the investigator's recording: Rayhons told investigator he didn't force sex on wife.
April 15, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | TrackBack (0)
Justice in Aging (a 40+ year-old organization, until recently known as the National Senior Citizens Law Center) is "seeking a strategic, dynamic attorney" to join their health team in the Washington D.C. office. They are requesting applications by May 1, with a target start date of June 1.
- A J.D.
- At least 7 years of experience working for a consumer, legal, association, or other non-profit in a similar capacity
- Creative thinker with experience developing and implementing new advocacy projects to fill existing and emerging needs in underserved communities
- Capacity to manage multiple projects and people simultaneously
- Excellent interpersonal skills with demonstrated ability to lead, work as part of a team, and build external relationships
- Thorough understanding of both national and state legislative and regulatory processes
- Effective speaking, presentation, and writing skills
For more on the exciting opportunities in this position, see the full "job" posting on Justice in Aging's website.
National Public Radio so often makes one think, with a crisp, well-told story about something entirely new. That is true in their recent airing of A Forgotten Generation: Half of South Korea's Elderly Live in Poverty. And yet the on-line article that accompanies the short podcast, proved to be equally compelling, with a photo of a very long line of neatly-dressed, attractive, older South Koreans, some wearing colorful backpacks, one leaning on an umbrella or cane, who are waiting patiently for a weekly disbursement from a local church of 500 won coins, equal to about 50 cents. Not just profound poverty, but loneliness is clearly a factor.
With thanks to my colleague Laurel Terry for sharing the link.
Tuesday, April 14, 2015
UPDATE: The jury trial of State of Iowa v. Henry Rayhons is scheduled to continue on Wednesday, April 15. There were no proceedings on Tuesday, April 14. In the meantime, here are additional relevant discussions, from several sources:
- New York Times: Sex, Dementia and a Husband on Trial at Age 78. The electronic version of the NYT on April 14 also carried the following as the Quotation of the Day:
QUOTATION OF THE DAY
"So much of aging and so much of being in a long-term care facility is about loss, loss of independence, loss of friends, loss of ability to use your body. Why would we want to diminish that?"
DANIEL REINGOLD, chief executive of the Hebrew Home in the Bronx, which pioneered a "sexual rights policy" for residents in 1995.
- From JUSTIA.Com: When Does an Alzheimer's Patient Lose the Capacity to Consent to Sex? by Cornell Law Professor Sherry F. Colb.
- From the Washington Post: When the Mind Falters, is Sex A Choice? by Marie-Therese Connolly, a thoughtful opinion piece written in 2009, discussing several challenging scenarios, some involving more casual relationships, or arguably more "extreme" facts, such as a "Wisconsin minister who regularly came to the nursing home to have sex with his comatose wife."
- From the Huffington Post: Iowa Case Sheds Spotlight on Whether People With Alzheimer's Can Consent to Sex.
I'll supplement the "Trial Reports" as additional information becomes available. Check back on Wednesday.
The Washington Post reminds us that changes to federal law for government-backed reverse mortgages, adiopted in 2014, are about to kick in:
"Interested in a reverse mortgage without a lot of hassles? Better get your application in fast. As of April 27, the federal government is imposing a series of extensive 'financial assessment' tests that will make applying for a reverse mortgage tougher — much like applying for a standard home mortgage.
[D]uring the years of the recession and mortgage bust, thousands of borrowers fell into default because they didn’t pay their required property taxes and hazard insurance premiums. On top of that, real estate values plunged, producing huge losses on defaulted and foreclosed properties for the FHA. The losses got so severe that the Treasury Department had to provide the FHA with a $1.7 billion bailout in 2013, the first in the agency’s history since its creation in the 1930s.
All of which led to the dramatic changes coming April 27. Applicants are now going to need to demonstrate upfront that they have both the 'willingness' and the 'capacity' to meet their obligations. Reverse-mortgage lenders are going to pull borrowers’ credit reports from the national credit bureaus, just as they do with other mortgages.illion bailout in 2013, the first in the agency’s history since its creation in the 1930s."
For more details see the full Post article at Window Is Rapidly Closing to Get Hassle-Free Reverse Mortgage.
Monday, April 13, 2015
On April 13, the fourth day of the trial of State of Iowa v. Henry Rayhons, the prosecution continued presenting evidence in the state's case-in-chief. Here are links to news sources covering the day's events, including:
- From KIMT.com: Testimony of a physician from the care facility regarding his opinion regarding Donna's mental capacity, plus a description of video surveillance of the husband on the night in question, in which "you can see Donna being redirected to her room by Henry, after she had wandered through the halls. Nearly 30 minutes later, Henry is seen leaving the room [and depositing her underwear in a hamper]."
- From KIMT's Twitter feed: Excerpts of testimony from nurses and several staff members at the care center, including a report that a Care Center physician testified that "Just like an infant, a person can respond to stimuli. That doesn't involve any consent given."
- From the Des Moines Register: Reporting that a total of three doctors testified today and that "Dr. John Brady, who is medical director of Concord Care Center, testified that Donna Rayhons had severe dementia caused by Alzheimer's disease. He said any positive reaction to her husband's affectionate advances could be termed a 'primal response,' not a conscious decision to reciprocate."
Further, from the Des Moines Register, an account of the testimony of one of the physicians, a neurologist: "One of the doctors, neurologist Alireza Yarahmadi, disputed any notion that such an Alzheimer's patient could vary greatly in her ability to understand what was going on around her. 'When they're severe, they're going to stay severe,' Yarahmadi testified."
The trial is expected to continue on Wednesday, April 15 (corrected, after learning no proceedings on Tuesday).
April 13, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
University of Georgia Law Professor Elizabeth Weeks Leonard has a forthcoming article in the Minnesota Journal of Law, Science and Technology. Professor Leonard, working with graduate research assistants and colleagues from the University of Georgia's Institute of Gerontology, draws upon Georgia's recent experiences in implementing a state public health registry for Alzheimer's disease or similar dementias under legislation passed in 2014. The article provides guidance on how to navigate the legal and ethical issues that can arise in implementing such a registry.
This is a cutting edge program in its early stages, as described by the authors:
"This article offers a unique window into one state’s experience establishing an Alzheimer’s disease and related dementia registry. Georgia is the most recent of handful of states to adopt such a registry and, in doing so, has already committed to robust data collection practices along with clear commitment to protecting patients’ privacy. The authors were privileged to convene a group of stakeholders to brainstorm and submit rulemaking comments on Registry implementation to the Georgia Department of Public Health.
In addition, through further consultation with state leaders in gerontology and building on our own health law, public health, and legal services expertise, we offer additional recommended best practices for the Registry. We anticipate that Georgia is leading a nationwide trend in addressing the rapidly rising incidence of Alzheimer’s disease and related dementia with the aging population. Accordingly, our recommendations will be valuable not only for Georgia but also for other states that may decide to establish similar Alzheimer’s registries."
You can get an early look at "Best Practices for a State Alzheimer's Disease Registry: Lessons from Georgia," here on SSRN. Professor Leonard's research focuses on health care finance and regulation.
Sunday, April 12, 2015
The Washington D.C. Bar Association has interesting CLE programs. The D.C. Bar is offering a session this week on Breaking the Silence: Depressing in the Practice of Law:
- Denise Perme, LICSW, Manager, D.C. Bar Lawyer Assistance Program, moderator
- Katherine Bender, PhD, NCC, Programming Director, The Dave Nee Foundation
- Dan Lukasik, Managing Partner, Bernhardi & Lukasik, PLLC
- Col. Brett Schneider, MD, Director of Behavioral Health Services, Walter Reed National Military Medical Center
The session is on Friday, April 17 from 4 p.m. to 5:30 p.m. Details about registration and location here.
It seems to me that I'm seeing more programming that explores mental health in the practice of law and that seems like a pro-active, healthy trend.
Saturday, April 11, 2015
New York Times has added one of its nifty little videos to a granddaughter's tale of Modern Love. The intro explains: "While battling Alzheimer’s disease, Deenie Hartzog-Mislock’s grandmother invents a wild story and the family learns to love an imaginary man named Nick Stephanopoulos." (For some reason, I can't get the video to "embed" -- but this link seems to work.)
Thanks to Tobor for the link.
One of the first assignments I give to law students in my Elder Law course is to visit a "nursing home" and to see if they can get a copy of the admission agreement or contract. (Most of the facilities in my area cooperate with these student visitors.) The lesson here, however, is revealed when the students bring the documents back to the classroom for discussion. We discover that the majority of the contracts are not for admission to "skilled nursing facilities."
More frequently the facilities in question are licensed as "continuing care retirement communities" or CCRCs, which are big in Pennsylvania, or personal care homes (PCs or PCHs), or assisted living (AL) communities, each of which have different state regulations applying to their operations. These are not "nursing homes," or at least, they are not "skilled nursing facilities." Further, in Pennsylvania, increasingly there may be no label at all -- at least not a label that the public is familiar with -- and that is often by design as the facility or community may be attempting to avoid a "higher" level of requirements.
The usual explanation is that the choice in label is not driven by concerns over "quality" of care, but by costs of having to meet some non "care" related regulation, such as AL state requirements for room size or physical accommodations. The facility makes the case that it can meet the real needs of its clientele without being tied to "higher care" and therefore more "costly" models for senior housing. Fair enough. Caveat emptor. If you are the customer, make sure you do your homework, ask questions, comparative shop, and avoid assumptions based on pretty pictures in marketing brochures. And try to do all of this before an emergency that accelerates the need for a move.
But, there can be significant differences triggered by a label (or lack thereof) that are not readily apparent to the public. A recent Policy Issue Brief published by Justice In Aging (formerly the National Senior Law Center) uses examples from California to shine a spotlight on subtle issues in labeling, as well as on the importance of regulations that are responsive and up-to-date. Merely changing an "identity" or label should not be the basis for failing to comply with minimum standards relevant to the clients' needs.
In How California's Assisted Living System Falls Short in Addressing Residents' Health Care Needs, Justice in Aging (JIA, to make our circle of acronyms almost complete), provides a sample job notice for a California facility and asks "can you spot the legal violations in this Assisted Living job announcement?" The notice, appears to be hiring for a "certified med aide," despite the fact that there is no such thing in California, and more importantly, if the facility calling itself "Assisted Living" is actually a RCFE (residential care facility for the elderly), the California regulations do not permit staff to administer medications. Outside of Medicare/Medicaid standards for skilled nursing facilities -- the "nursing homes" of the past -- there are no national standards for labeling of "assisted living" or the many alternatives.
JIA's issue brief dated April 7, 2015 is part of a series that explores how California's system functions and points to ways it could be modified to help assure residents their expectations and needs will be satisfied.
The lessons in the JIA brief -- with a few tweaks to respond to any given state's set of acronyms -- seem equally relevant in all states.
Friday, April 10, 2015
On April 10, the third day of the trial of State of Iowa v. Henry Rayhons, the prosecution offered its first witnesses. According to news sources, the evidence included:
- Testimony by an adult daughter of the alleged victim, the defendant's wife. She is reported as saying that she did not disapprove of the 2007 marriage between her widowed mother and the defendant, but that "in the years after the wedding, her mother began showing troubling signs of mental decline." By the spring 0f 2014, her mother appeared "very confused" and the daughter, who runs an agency for people with intellectual disabilities, observed disturbing behavior, including incidents of her mother's inappropriate and inadequate clothing, inability to use silverware, and an attempt to use a toilet to wash her hands. At a meeting a few weeks after her mother was moved from the couple's home to a care facility, the "doctor told the family," including the defendant, that Donna Rayhons "was no longer capable of consenting to sex." She is reported as testifying she did not remember Rayhons' exact response, but that "he indicated it wouldn't be a problem."
- Testimony of a doctor who met with Donna Rayhons in March 2014. He reportedly testified she was unable to answer "basic questions, including the names of her daughters." According to one news report, he testified that "it wouldn't be likely that a 78-year-old suffering from dementia would be able to consent to sex."
- Testimony of a social worker from the care center where Donna Rayhons was a resident. According to news reports, the social worker testified about a staff meeting with the family in May, saying that she "wrote up a one-page list of suggestions, including limits on outside activities, and had Donna Rayhon's doctor go over it beforehand." At the bottom of the document, the social worker reportedly wrote: "Given Donna's cognitive state, do you feel she was able to give consent to any sexual activity?" And according to the news reports, it was the doctor who wrote, "No." She is reported as testifying that she'd "never written such a statement for a family in 18 years on the job," but that she also said she never had a spouse seem to want to continue having sexual contact with a resident who was severely cognitively impaired." According to the Des Moines Register, on cross examination, the social worker said that no one at the meeting explained to Henry Rayhons what sexual activity meant, and that "she never saw any evidence that Rayhons harmed his wife, or that she was afraid of him or angry with him." She was reported as saying his wife was "always pleased to see Henry," and were very affectionate.
The testimony on Day 3 appears to raise interesting questions about the admissibility and effect of opinion testimony regarding the mental capacity of the alleged victim, potentially bringing into play prior Iowa case law.
Fun News for Friday: Golfer Jack Nicholas, the "Golden Bear," wowed the audience and his fellow players (including, apparently, Tiger Woods and Rory McIlroy) in Augusta, Georgia this week, with an ace on the fourth hole of a Par 3 contest.
Hole-in-one? Short course or not, at age 75 (heck, at any age), that's impressive and inspiring!
ElderLawGuy Jeff Marshall alerted us to this week's ruling by the Third Circuit Court of Appeals, affirming the conviction of Eugene Goldman, M.D. for several counts of taking "kickbacks" for referral of Medicare and Medicaid patients for hospice services. Dr. Goldman's sentence of 51 months, followed by three years of supervised release during which he is barred from practicing medicine, was affirmed. The facts, as set forth in the opinion, are interesting:
"Goldman had a geriatric medicine practice in Northeast Philadelphia. In December 2000, he secured the position of Medical Director of Home Care Hospice ('HCH'). Alex Pugman served as Director of HCH, and his wife, Svetlana Ganetsky, was the Development Executive, responsible for marketing HCH to doctors and other healthcare professionals. According to his contract, Goldman was responsible for quality assurance, consultations, and the occasional meeting. In reality, his job was to refer patients to HCH.
Goldman was paid for the number of patients he referred to HCH and the length of their stay. Early in his relationship with HCH, Goldman was paid $200 per referral. By 2011, he received $400 per referral, with an additional $150 for each patient who stayed longer than a month. Ganetsky paid Goldman each month by check. Between 2002 and 2012, Goldman referred more than 400 Medicare patients to HCH and received approximately $310,000 in return.
In 2006 the FBI and Department of Health & Human Services began investigating HCH for Medicare fraud. The FBI followed up in 2008 by obtaining a search warrant and seizing over 500 boxes of documents and information from HCH’s servers. Shortly after the raid, Ganetsky and Pugman approached the FBI and agreed to cooperate in the investigation. Ganetsky then recorded several meetings at which she paid Goldman for his referrals. Ganetsky made these payments with funds drawn from an account opened by the FBI for the investigation."
Web-Cameras in Nursing Homes: Do They Invade Privacy (and Whose Privacy or Interests are Paramount)?
In Philadelphia, the decision of a nursing home to remove the compact video camera attached to a computer owned by a 59 year-old disabled resident has triggered a debate about legal issues associated with the resident's broadcasts. On the one hand, the resident, who had lost the ability to speak and who had limited mobility associated with cerebral palsy, used the camera to facilitate communications with his family. But, to the nursing home:
... where he has lived for decades, the camera was a watchful eye, scrutinizing its staff's every move and capturing images of people whose privacy they're responsible to protect.
Stu's computer equipment was abruptly removed in mid-December, and he was asked to write a note defending his access to it. Family members called it a "cruel hurdle" for a man with limited mobility who selects each letter by pushing the back of his head against a switch.
In another note pleading for his webcam to be returned, Stu, 59, wrote: "WE ARE NOT SPYING ON ANYBODY!" The Sandersons unwittingly became part of a splintered national debate about the role of video cameras in long-term care facilities.
Additional coverage, outlining the delicate case, and suggesting broader issues, is available here and here. Part of the background for the current issues includes a 2012 investigation of suspected abuse of a resident in a different nursing home in Pennsylvania, where a web camera reportedly led to criminal charges against nursing home employees.
April 10, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 9, 2015
During the second day of State of Iowa v. Henry Rayhons, the court seated a jury of 6 men and 8 women. According to early news reports, during voir dire both the prosecution and the defense gave hints of their theories of the case, where the 79-year-old former state legislator is accused of sexual abuse on his wife, who had Alzheimer's. The Des Moines Register reported:
Several potential jurors indicated they'd read or seen some of the extensive news coverage of the unusual case. [Prosecutor] Krisko told them that if they are picked to hear the case, they will be expected to set aside concerns about how their decision would be viewed or what punishment it might bring to the defendant. "We're not here about making public policy. We're here about one incident — one man, one woman," she said.
On Thursday afternoon, defense lawyer Joel Yunek talked extensively to potential jurors about the issues of dementia and sex among the elderly. Yunek noted that his mother has Alzheimer's disease, and he asked how many of the potential jurors had someone in their families with the disease or other types of dementia. Many raised their hands. The defense lawyer expressed sympathy as he led them through discussion of the effects.
When one man recounted how a relative with dementia has good and bad periods, Yunek said: "It's a baffling disease, isn't it?" "Yes, sir," the man replied.
Later on the same day, the two attorneys gave their opening statements, as reported here.
The trial is expected to last about a week.
On February 27, Pennsylvania's new governor, Tom Wolf, issued Executive Order 2015-05 regarding "participant-directed home care services."
The order reportedly reflects the Governor's interest and support for home care for seniors and persons with disabilities, while also recognizing potential issues such as low wages or absence of benefits, high turnover, inconsistent quality or lack of standards. The order:
- Creates a Governor's Advisory Group to advise the administration on "ways to improve the quality of care delivered" through publically funded home care service programs;
- Recognizes a "representative for Direct Care Workers for the purpose of discussing issues of mutual concern," while also authorizing a procedure for "election" of the representative; and
- Establishes a "Direct Care Worker List" of all workers paid through state programs, and further permits "an employee organization that has as one of its primary purposes the representation of director care workers" to petition the state to represent a particular unit of direct care workers.
As set forth in recent media reports, the Executive Order has met with resistance from some quarters, including those who are challenging the order as unlawfully permitting "unionization" of home care workers. On April 6, 2015, a complaint seeking injunctive relief from implementation of the executive order was filed in the Pennsylvania Commonwealth Court by a home care worker and his long-time client, a "quadriplegic adult with muscular dystrophy receiving care from the [state administered] Attendant Care Services Act.." The complainants are reportedly represented by "The Fairness Center, a conservative public-interest law firm."
April 9, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 8, 2015
Day one of the sexual abuse trial of State of Iowa v. Henry Rayhons was Wednesday, April 8. News report of the first day here. Coverage of pretrial motions here, with the husband's lawyer describing potential expert testimony about how individuals with Alzheimer's could be capable of consent, while the prosecution argues consent is impossible as a matter of law, making an analogy to sexual contact with a minor or an individual who was unconscious or passed out. More background here.
Today, April 8, is the scheduled day for jury selection to begin for the trial of State of Iowa v. Henry Rayhons. We've written about the charges here and here, but to summarize, Mr. Rayhons, now age 79, was charged last year with "sexual abuse" of his wife, Donna Rayhons (78 at the time), who was residing in a nursing home with Alzheimer's. Iowa law has several different ways in which a "sexual act without consent" between a "husband and wife" can constitute "sexual abuse in the third degree." See Iowa Code Section 709.4(2).
Here, because the husband and wife were not "cohabitating," a conviction would appear to depend on the state's ability to prove that the sex act was with a person suffering from a "mental defect or incapacity which precludes giving consent." It appears the state takes the position that "consent" was impossible because Mrs. Rayhons had been diagnosed with a mental defect, the advanced stages of Alzheimer's. Further, it appears the state expects to prove that her husband was aware of the diagnosis, and further, that at some point before the evening in question, he "agreed" she was incapable of giving consent because of her condition. But at the core, isn't there still an essential question about whether, assuming the state can prove those statutory elements, the law is intended to prevent a married couple from having "consensual" relations because one partner has Alzheimer's?
There apparently was no evidence of physical or emotional damage to Mrs. Rayhons, including no evidence of cries for help or protestations on her part. It appears there will be testimony about the close and loving relationship the couple had before the night in question. It will be interesting -- and sad -- to hear whether there is evidence of a "sexual act."
The Washington Post's Sarah Kaplan has drawn together a history on the case to this point, including details first reported by Bryan Gruley for Bloomberg News. At one point the prosecution tried to get a change of venue for the trial -- a very unusual request from a prosecutor -- which the trial court denied.
I've been hearing from a lot of folks lately about this case, including several medical professionals. I think that after the charges were first announced in August 2014, many people expected the case to quietly disappear, especially as Mrs. Rayhons has passed away, and her husband, then a state legislator, had retired from office.
Yesterday, I had the interesting experience of being interviewed for a KABC radio show in Los Angeles by "Dr. Drew." It was pretty clear that with his background, board certified in internal medicine and a clinical professor of psychiatry at USC, Dr. Drew Pinsky was troubled by the possibility that a medical diagnosis could, without more, be treated as prohibiting legally effective consent to sexual relations. (A guardian was appointed for Mrs. Rayhons, but those proceedings were begun after the night in question.) As Dr. Drew commented during the radio show, even in advanced dementia, there may be core functions that a person continues to be able to enjoy and therefore seek, including eating, drinking and ... intimacy.
April 8, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)